Texas Supreme Court Upholds Severance!
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By Chuck Lindell
Published: 9:36 p.m. Friday, March 30, 2012
Affirming the private-property rights of shoreline landowners, the Texas Supreme Court ruled Friday that the public's right of access to state beaches cannot be guaranteed when hurricanes or storms reshape the coast.
The sharply divided ruling will limit the state's ability to enforce the Open Beaches Act, a 53-year-old law that had been used to force landowners to raze or move structures that intrude on the public right of way because of storm erosion.
Writing for the 5-3 majority, Justice Dale Wainwright said the easement that preserves public access to Gulf of Mexico beaches cannot suddenly jump many feet inland after a storm, encroaching on private property where no easement previously existed.
"On one hand, the public has an important interest in the enjoyment of the public beaches. But on the other hand, the right to exclude others from privately owned realty is among the most valuable and fundamental of rights possessed by private property owners," Wainwright wrote.
The court had come to essentially the same conclusion in the same case in 2010 — prompting loud protests from state officials, Gulf of Mexico communities and beach advocates — before agreeing last year to reconsider its ruling.
Writing in dissent, Justice David Medina said Friday's ruling will probably embroil the state in litigation and costly efforts to re-establish public beach access after every hurricane.
"The Texas coastline is constantly changing and the risks of purchasing property abutting the ocean are well known," Medina wrote. "It is unreasonable, however, to require the state and its taxpayers to shoulder the burden of these risks."
In a separate dissent, Justice Debra Lehrmann said the ruling will probably produce continued degradation of Texas beaches.
The Texas Constitution bans the use of public money for private benefit, Lehrmann said, noting that the court's earlier Open Beaches Act ruling led to the cancellation of a $40 million beach restoration program for Galveston. State officials determined that the project would have benefited beaches from which the public could be excluded, she said.
According to the General Land Office, the ruling also will jeopardize state-financed debris-cleanup efforts after hurricanes.
The issue before the court revolved around the dividing line between public and private beachfront.
Public land, owned by the state, runs from the high tide mark to the water and is known as the "wet beach." Friday's ruling did not change this concept.
Instead, the ruling focused on the "dry beach," which runs from the high tide mark to the vegetation line and may be privately owned.
Under the Open Beaches Act, the dry beach also is typically subject to an easement that keeps it open to the public.
The present controversy began with a lawsuit by Carol Severance, who bought several beachfront homes on Galveston Island's West Beach in 2005.
Five months later, Hurricane Rita moved the vegetation line behind Severance's properties, and state officials ordered her to move or raze the structures.
In its ruling, the Supreme Court acknowledged that the public beach easement can subtly shift to follow natural patterns of erosion. It cannot, however, jump to encompass previously private property after a storm, the court said.
Chief Justice Wallace Jefferson did not participate in the case, Severance v. Patterson, 09-0387.
Contact Chuck Lindell at 912-2569